An attempt to impeach Trump likely would fail

The midterm elections have made it all but certain that some Democrats will introduce impeachment resolutions against President Donald Trump after the new Congress begins in January. Speaker-in-waiting Nancy Pelosi downplays talk of impeachment and seems unlikely to use any such resolutions to initiate hearings or schedule an actual impeachment vote. But others are less circumspect.

On Sunday, Rep. Jerry Nadler, D-N.Y. — the likely incoming chairman of the House Judiciary Committee, traditionally responsible for impeachment hearings — told CNN’S Jake Tapper about Trump’s reported hush payments to women during the 2016 campaign: “It may be an impeachable offense if it goes to the question of the president procuring his office through corrupt means.” Rep. Adam Schiff, D-calif., poised to take the House Intelligence Committee helm, on the same day hinted to The Washington Post that Democrats would investigate Trump’s retaliations against media sources that have reported news about him that he doesn’t like as abuses of “instruments of state power.” His phrasing carries import; abuse of power has been a common charge across the many articles of impeachment introduced against previous presidents. Special counsel Robert Mueller is expected to send Con- gress a report on his findings on Russian interference in the 2016 election and whether Trump attempted to block the investigation.

Already, more than three-quarters of self-identified Democratic voters in this month’s elections support impeachment, exit polls found. And they may well be right that Trump’s actions — on several fronts — could clear the threshold of “high crimes and misdemeanors.” But no one should suffer illusions about the likely result of any impeachment attempts.

Being deemed unfit for office — the condition intended by the Founders to trigger impeachment in the House — has never been enough to get the Senate to remove a president. History sug- gests that there wouldn’t be a successful conviction by twothirds of senators without two other conditions in place: A chief executive must also be deeply unpopular. And booting him from office must seem more advantageous for the opposition in the next election than letting him remain there.

“If he be not impeachable whilst in office,” William Davie told his fellow Constitutional Convention delegates in the summer of 1787 about the proposed president, “he will spare no efforts or means whatever to get himself reelected.” A couple of weeks later, Elbridge Gerry added his view of impeachments: “A good magistrate will not fear them. A bad one ought to be kept in fear of them.”

The delegates eventually agreed that an unfit president could be impeached (basically, indicted) for “Treason, Bribery, or High Crimes and Misdemeanors” by a majority vote in the House. Charles Black offers an admirable working definition of the latter phrase. “High crimes and misdemeanors,” he says, “ought to be held to those offenses which are rather obviously wrong, whether ‘criminal,’ and which so seriously threaten the order of the political society as to make pestilent and dangerous the continuance in power of their perpetrator.”

In today’s context, Black’s take on high crimes and misdemeanors is narrow enough to reject

overzealous claims such as “Trump should be impeached because he is undermining America’s proven alliances,” but remains wide enough to encompass either the president’s attempts to curtail an investigation of himself or hush payments made to women in violation of campaign laws.

Although presidents have not been impeached as often as some founders probably would have predicted, two of the first 42 presidents did suffer that rebuke. In both cases, the required vote of two-thirds of senators to convict and remove the impeached chief executive, in a trial with the chief justice presiding, failed to materialize. History could repeat itself soon.

Andrew Johnson, succeeding the assassinated Abraham Lincoln in 1865, quickly began provoking Congress by paroling leading Confederate officials, appointing governors for unreconstructed Southern states, and supporting those states’ right to institute discriminatory “black codes.” He routinely vetoed civil rights and other bills.

Why didn’t the Senate remove this deeply unpopular president — and what does that tell us about a potential Trump trial?

First, the articles against Johnson were weakly drawn — hinting that any articles of impeachment against the president now must be based on established law, not trumped-up charges.

Second, in 1868, the president agreed to arrange jobs for a few undecided senators’ constituents and stop obstructing congressional Reconstruction plans.

Third, the law of the time directed that Johnson’s successor if impeached would be Ohio’s Benjamin Wade — the Senate’s president pro tempore — who was, to put it mildly, unsuited for the presidency. (For years, he dared challengers to attack him in the Senate, having prominently placed two loaded pistols on his desk when he came into the chamber.) This suggests that if Trump were impeached, senators would be looking more carefully than they have to date at how Vice President Pence is comporting himself; if he fails any of their tests, Trump is on safer ground.

And fourth, many Republicans in 1868 weren’t looking for a post-impeachment wild card because they were already highly likely to take the White House within months with the election of the widely popular Ulysses S. Grant. Counterintuitively, then, the stronger the Democratic frontrunners for the 2020 nomination look against Trump as the next presidential election approaches, the weaker the odds become of any post-impeachment removal before 2020.

To save himself from the indignity of impeachment, but probably also to keep a prolonged trial from paralyzing the country, Nixon ultimately resigned. If facing probable conviction and removal, we should hope that any president would do the same.

Without a dramatic turn of events it’s unlikely that the Senate as currently composed would take Trump down even if the House were to impeach him. For Republican senators, his popularity among the party base will keep them in check.

Absent the president’s own party turning on him, which took down Nixon but seems unlikely in the foreseeable future, removal from office via impeachment will remain a steep mountain to climb — as kicking a president out without the direct input of the people should be.

David Priess is a former CIA intelligence officer and a visiting fellow at the National Security Institute of George Mason University. This was excerpted from his book “How To Get Rid of a President: History’s Guide to Removing Unpopular, Unable, or Unfit Chief Executives.”